He got his day in court.

Photographer: Chris Hondros/Getty Images

Saddam's Enablers Catch a Break in Court

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Every country gets the government it deserves … right? So the U.S. Court of Appeals for the Second Circuit has ruled -- in a fascinating and weird decision denying the Iraqi people the right to sue corporations that allegedly colluded with Saddam Hussein to defraud them.

In essence, the court said, the Iraqis can’t sue because they’re responsible for Saddam’s conduct when he was their lawful president. On the surface, this may sound harsh but reasonable. But consider what the U.S. government insisted when it imposed the sanctions and then invaded Iraq: that it was liberating the Iraqi people from an unjust usurper. So which is it?  The answer matters not just for Iraq, but for the more fundamental question of how we should treat oppressive governments all over the world.

The case, Republic of Iraq v. ABB AG, arose out of the oil-for-food program that the United Nations imposed on Saddam Hussein’s Iraq in the wake of the Persian Gulf War. The theory behind the program was that, although the world was imposing sanctions on the dictator himself for his failure to comply with UN resolutions, the Iraqi people shouldn’t starve as a result. Proceeds from purchases of Iraq’s vast oil production were supposed to go into a kitty; the money would be used to buy food and medicine. This was supposed to circumvent  the possibility of personal profit to Saddam. Oh, and the energy markets wouldn’t have to suffer from taking Iraq’s oil out of circulation, so the price of gasoline wouldn’t spike.

In practice, you’ll recall, Saddam was smarter than that. He required purchasers of oil to make under-the-table payments in a range of creative ways, assuring that he was still profiting to the tune of billions of dollars from his control over the nation’s only really valuable asset. After the U.S. and its handful of allies took out Saddam’s regime in 2003, the new government of Iraq tried get back the money he had stolen from the program. Some assets were recovered from his own bank accounts, but Iraq’s lawyers decided to get creative.

The Iraqi government sued oil purchasers who allegedly paid kickbacks; banks that handled the money; and vendors who allegedly colluded in overcharging for products sold to Iraq in order to facilitate fraud. As their chief legal means, the Iraqis chose the Racketeer Influenced and Corrupt Organizations Act, the protean statute devised to prosecute Mafia conspiracies. (They also brought claims under the Foreign Corrupt Practices Act, but this was a poor fit since the law doesn’t allow for a right of action to be brought by private parties, and the courts never took it seriously.)

The district court rejected Iraq’s argument, and in a lengthy opinion, a divided panel of the U.S. Court of Appeals for the Second Circuit has now confirmed that the case may not go forward. The basis for this conclusion is a hoary doctrine with the Latin name “in pari delicto,” meaning “in equal fault.” The intuitive idea is that, if I am complicit with you in an unlawful scheme, I should not then be able to sue you and collect damages. According to the Second Circuit, the government of Iraq -- in the person of Saddam Hussein -- was part of the original conspiracy to defraud. Consequently, today’s Iraqi government cannot seek damages from its former partners in crime.

For this conclusion to make sense, you have to believe that Saddam Hussein was the legitimate president of Iraq, and that today’s government (we’ll call it democratically elected, as a matter of approximation and courtesy) is its lawful successor. Naturally enough, Iraq’s lawyers argued the contrary. Saddam Hussein, they pointed out, was a brutal dictator who came to power in a coup d’état and ruled by force and terror, killing hundreds of thousands of his own citizens.

The Second Circuit didn’t care. It acknowledged that some actions by government officials might not be attributable to the state, but that the oil-for-food corruption was plainly “the policy of the Iraqi government.” The government of a country, the court said, must be held responsible for the actions of the state. And it’s standard legal practice to hold the subsequent government responsible for the actions of one that preceded it -- otherwise it would be difficult to hold countries to account for their legal obligations when they changed governments.

In dissent, Judge Christopher Droney, an Obama appointee, challenged the moral basis for the holding. Applying the doctrine of equal blame “leads to a result that directly contradicts US policy towards Iraq throughout the relevant time,” he wrote, because the U.S. did not treat the Iraqi people as “collectively complicit” in the regime.

This was certainly true of the oil-for-food program -- the entire premise of which was that there was a huge division between Saddam and the Iraqi people. But it was truer still of U.S. rhetoric during and after the 2003 invasion -- Washington insisted it was liberating the sovereign Iraqi people from an unjust dictator, not displacing the lawful ruler of the country in a coup d’état of its own shock and awe.

Behold the hypocrisy cleverly enabled by the separation of powers. It was Congress and the president who invaded Iraq on the theory of liberation. It’s the courts that now insist there’s no legal difference between Saddam Hussein and subsequent governments.

The sad thing is that, as a strictly legal matter, the Second Circuit is probably right.  If courts were to start parsing the legitimacy of each government to determine whether subsequent governments should obey their legal obligations, the result would be chaos.

But it would nonetheless be inhuman not to feel moral outrage at the result. Taking out the government of a country that hasn’t attacked you is among the most extreme things one nation can do to another. The moral argument for the invasion ultimately rested on the noble-but-naïve idea that Iraqis would now be able to govern themselves. It’s a sad day when a branch of the U.S. government repudiates the distinction between the dictator and the people.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Tobin Harshaw at tharshaw@bloomberg.net